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Judicial Watch • Harvardlike App w Exh

Harvardlike App w Exh

Harvardlike App w Exh

Page 1: Harvardlike App w Exh


Number of Pages:18

Date Created:July 5, 2013

Date Uploaded to the Library:February 20, 2014

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Roenuse on.e above the law! I 

General Counsel Meredith Fuchs c/o ChiefFOIA Officer Marty Michalosky Conswner Financial Protection Bureau 1700 St., N.W. Washington, D.C. 20036 

Re: CFPB's Partial Denial CFPB-2013-149-F for Harvardlike Records 
Dear Ms. Fuchs: 
This letter timely appeals the Conswner Financial Protection Bureau's July denial1 Judicial Watch's June records request2 regarding pre-solicitation notice 
nwnber CFP-13-P-00039 published last month CFPB Procurement Officer Elie Stowe. The July denial stated that: search the Offices Procurement, the Chief Human Capital Officer, and the Chief Financial Officer for documents responsive your request produced total pages. those pages, have determined that pages are granted full, pages are granted pa1t, and pages are withheld full pursuant Title U.S.C.  552 (b)(5) and/or (b)(6). for Relief CFPB's substantial denial falls far short what FOIA requires releasing 
public records under FOIA, well justifying decision withhold any portion
thereof,Judicial Watch challenges these adverse determinations and asks that the agency CFPB's July denial cannot appended because was sent read-only protected fonnat. "agency cannot justify withholding entire document simply showing that contains some exempt material. has long been rule this Circuit that non-exempt po11ions document must disclosed unless they are inextricably intertwined with exempt portions. 1974, Congress expressly 

425 Third St., SW, Suite 800, Washington, 20024 Tel: (202) 646-5172 -888-593-8442 FAX: (202) 646-5199  Emai 
reconsider its decision, compelling appropriate personnel once to: 	Craft search likely locate all responsive records; 	Promptly execute that search reasonable manner, including pursuit any logical leads; 	Conduct segregability analysis order redact only those portions responsive documents shown exempt from compulsory disclosure 4 	Redact responsive records manner that indicates the amount 
material withheld the site the redaction, citing the precise basis
for withholding; 	Release all responsive documents or, narrow instances, supply particularized justification for continuing withhold whatever specific portions the bureau can establish are exempt from CFPB's
overarching duty disclose 
What follows enumeration certain deficiencies -illustrative but means exhaustive --establishing CFPB's failure adequately fulfill CFPB-2013-149-F compliance with FOIA. 
incorporated that requirement into the FOIA, which now states that 'any reasonably segregable portion record shall provided ... after deletion the portions which are exempt."' Mead Data Cent., inc. 
U.S. Dep't the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977) (citing U.S.C.  552(b)). Carter. Fullerton Hayes LLC FTC, 520 Supp. 134, 146 (D.D,.C. 2007)("an agency must provide reasonably detailed justification rather than conclusory statements. suppo1t its claim that the non-exempt material document not reasonably segregable")(further citation and internal quotation marks omitted). U.S.C.  552(a)(2) provides, pertinent part, that "in each case the justification for the deletion shall explained fully writing, and the extent such deletion shall indicated the portion the record which made available published technically feasible, the extent the deletion shall indicated the place the record where the deletion was made." In:fo.
Acquisition Corp. U.S. Dep Justice, 444 Supp. 458, 462 (D.D.C. 1978)("when agency seeks withhold infonnation must provide relatively detailed justification, specifically identifying the reasons why particular exemption relevant and con-elating those claims with the particular part withheld document which they apply"). 
July 2013 Inadequate Search 
With only few minor caveats, FOIA directs agencies release all clearly described records within twenty (20) days request for them. Courts this jurisdiction have repeatedly admonished agencies constrne FOIA requests liberally. LaCedra Exec. Office for US. Attys., 317 F.3d 345, 348 (D.C. Cir. 2003)(further citation and internal quotation marks omitted). And, statute, federal agencies must "make reasonable efforts search for [requested] records." U.S.C.  552 (a)(3)(C). For purposes FOIA, "the tenn 'search' means review, manually automated means, agency records for the purpose locating those records which are responsive request." U.S.C.  552 (a)(3)(D). Thanks the Electronic Freedom oflnformation Act Amendments 1996, the law now "promotes electronic database searches and encourages agencies expend new effot1s order comply with the electronic search requirements particular FOIA requests." Schladetsch U.S. Dep Housing Urban Developm 't, 2000 U.S. Dist. LEXIS 22895 (D.D.C. Apr. 2000)(intemal citation omitted). Ultimately, doubts about the adequacy search are resolved favor requester. Negley FBI, 658 Supp. 50, (D.D.C. 2009) the instant case, does not suffice for FOIA staffer have confirined his herself that all that was found the first pass was all there was see. See Freeman 
U.S. Dep't Justice, 1991 U.S. Dist. LEXIS 19214 (D.D.C. Oct. 16, 1991) (failure find documents known exist deemed unreasonable where search was abandoned after few phone calls). Given that CFPB set goal for itself getting its top brass speed leadership matters, not logical -given the paper deluge bureaucracies are famous for creating, especially CFPB where everything must vetted seven layers throughout the chain command -that the ratio paper projected attendees less than one page per employee trained. 
Notably, the production itself replete with references other docmnents CFPB' possession that were neither released nor even identified this production having been consciously withheld. Hence, the extent that evidence suggests the existence many documents not produced, the agency liable have conducted legally deficient search. See Friends Blackwater 
U.S. Dep't Interior, 391 Supp. 115, 121 
(D.D.C. 2005). 
While agency's failure locate responsive documents its possession not always indication inadequate search, CFPB's total failure locate many 

hundreds responsive documents its possession the direct result CFPB' halfhearted efforts, made evident numerous references within the production other PB-generated documents not here released. Obviously decision conduct anemic search tantamount crafting unreasonable search within the meaning FOIA because destined fail. See, e.g . Davis U.S. Dep Justice, 2001 U.S. Dist. LEXIS 88374 (D.D .C. Dec. 2007) (agency search was "reasonably limited scope and destined fail" where, even pursuing "three separate avenues inquiry, none them had any likelihood" success). extension, CFPB's election not pursue obvious clues within the production the existence additional records led unlawful withholding within the meaning FOIA that must reversed. 
For instance, why wasn't your email account searched, Ms. Fuchs, since was yom request that triggered the comparison shopping for in-house training?7 extension, where Leaming Solutions Program Manager Matt Sacco's email correspondence with Harvard officials any other "noted Institutions Higher Learning" through which compiled the comparison shopping list which provided Procurement Officer Elie
Stowe?Lastly, where are all the emails vetting these agency decisions? They certainly 
occutTed one email specifically sets forth requirement obtain Dennis Slagter's approval.9 Can the case that his approval may secured telephone call only 
without written proof agency record the fact? Not according other documents 
contained the production. 

So, CFPB proceeds with legally adequate search, reminded that "an agency obliged pursue any clear and certain lead cannot good fth ignore." Cooper 
Dep oflustice. 2004 U.S. App. LEXIS 8135 (D.C. Cir. Apr. 23, 2004)(further citation and internal quotation marks omitted). that end, while "the agency generally need not search every record system .... agency crumot limit its search only one record system there are others that are likely tum the information requested." Campbell U.S. Dep Justice. 164 F.3d 20, (D. Cir. 1998)( citing Oglesby 

Dep the Army, 920 F.2d (D.C. Cir. 1990))(intemal quotation marks omitted). Ultimately, the adequacy CFPB's search for documents responsive Judicial Watch's request will judged "based what the agency knew its conclusion rather than what Mr. Sacco's May email Ms. Stowe referring substantial research conducted (but which was 
excluded from the production) here attached Exhibit 
July 2013 
the agency speculated its inception." Campbell, 164 F.3d 28. 
Failure identify and release any the above-referenced documents without any express justification egregious violation FOIA which you cannot pennit stand unabated, Ms. Fuchs. Excessive Redaction the extent that agency refrains from full release requested record the basis any exemption, FOIA requires that: 
any reasonably segregable portion the record shall provided any person requesting such record after deletion the portions which are exempt; 
the amount information deleted, and the exemption under which the deletion made, shall indicated the released portion the record; and, 
when technically feasible, the amount the information deleted, and the exemption tmder which the deletion made, shall indicated the place the record where such deletion made. 
See U.S.C.  552 (b). clear the fom pages withheld full that segregability was not accomplished described above and further discussed below. But, even the pages that released part, several serious problems arose, explained hereunder. Financial obligations the US. government are not deliberative 
Some information the govenunenf possession exempt from compulsory disclosure. U.S.C.  552 (b)(l)-(9). For instance, (b)(5) exempts from compulsory disclosure "inter-or intra-agency communications protected the deliberative process piivilege.''10 However, deliberative process itself subject limitations: qualify for protection under the privilege, materials must both predecisional and deliberative. document predecisional was See note supra. 

July 2013 
generated before the adoption agency policy and deliberative reflects the give-and-take the consultative process. deliberative, information must reflect the personal opinions the writer rather than the policy the agency. 
Judicial Watch, Inc. U.S. Dep't Homeland Sec 2013 U.S. Dist. LEXIS 27589 
(D.D.C. Feb. 28, 2013)(further citation and internal quotation marks omitted). 
With respect the present production, Judicial Watch not all confident that the (b)(5) exemption was properly applied any instance, given CFPB's mischaracterization the exemption's contours the agency's July determination letter. Indeed, the letter inaccurately states that the deliberative process privilege "exempt[sl from mandatory disclosure opinions, conclusions, and recommendations included within inter-agency intra-agency memoranda letters." fact, nothing could fmther from the truth. only the give-and-take brainstorming aspect intraagency conununications that shielded from public scrutiny order promote "the free and frank exchange" ideas, not information. The point be,ng that civil servants were exposed ridicule for being creative route developing effective policy solutions America's most pressing problems, the general public would left with lifeless automatons populating its bureaucracy that would accomplish nothing but sap the essential vigor from our democracy. The rest CFPB's lib about the "integrity" the "decision-making process" nonsensical warrant fwiher consideration. applied these facts, though, the very idea that the agency would purport shield deliberative indisputable computation resulting from policy already undertaken -well, defies all reason and stretches the limits absurdity. would funny weren't tragic. Attached example from the production where factual figures were hidden from the American people using excuse for withholding designed make government better not cripple our democracy keeping citizens the dark about our nation's purchases.11 The agency knows how many managers CFPB will required undergo the relevant training. The multiplication tuition times students caimot good faith withheld from public knowledge and must revealed. Contact info during telework hours cannot considered private addition objecting CFPB application pages not produced Attached Exhibit excerpt from the production where dollars already committed training and possibly already obligated from the U.S. Treasury were concealed purportedly deliberative nature. 
altogether, Judicial Watch also challenges the application (b)(6) all documents produced part. This because exemption (b)(6) not catchall privacy shield applicable under any conceivable circumstance. Rather, protects withholdings only under the following criteria: the information must contained within personnel and medical files and similar files; the disclosure the information would constitute clearly unwarranted invasion personal privacy; and the first two requirements are met, the privacy interest must weighed against the public interest disclosure. 
McCann United States, 2011 U.S. Dist. LEXIS 144410, 8-9 (D.D.C. Dec. 15, 2011 )(emphasis added). 
For purposes FOIA, personnel files (and, extension, those similar them) are records related "hiring and firing, work mies and discipline, compensation and benefits." Milner Dep'toftheNavy, 131 Ct. 1259, 1265 (2011). Once agency determines that responsive record constitutes anything like vital record, segregability analysis must undertaken order determine whether disclosure infom1ation contained therein would compromise substantial privacy interest, implicating exemption 6's "clearly unwarranted invasion" safeguard. Nat Ass Retired Fed Ernps. Horner. 879 F.2d 873, 874 (D.C. Cir. 1989). Where the agency finds "substantial privacy interest" stake, the agency must weigh the individual's "more than minimis" priVftCY interest nondisclosure against the public's overarching right know. Taitz Astrue, 806 Supp. 214, 217-218 (D.D.C. 2011). 
Crucially, application exemption narrowed more than any other privacy provision FOIA use the term "clearly." The presence this adverb, absent from other discretionary exemptions, "is mere accident drafting" .because the word survived "specific amendments existing statute." Nat'! Archives Records Admin. Favish, 541 U.S. 157, 165-166 (2004). 
Thus, the instant case, where CFPB simply parroted the language the statute, invoking exemption (b)(6) like talisman without any analysis, failed carry its
burden showing how the only government-issued contact channel which 
teleworking employee may reached while permitted work away from the office 

July 2013 
could considered any way private personal. And, since rationale whatsoever was provided, the agency can deemed have utterly failed establish "beyond all material doubt" that any the emails contained the production are anything like personnel record (since they only deal with coordinating training) how releasing the teleworking contact channel provided Ms. Stowe the Amerfoan government "would constitute clearly unwarranted invasion personal privacy." Id; 
Consequently, since the agency has failed its FOIA duty this requester and the citizenry large, immediate release information concealed via pretext )(6) must immediately disclosed. not claimed with and all blanket exemption without some notion, however abstract, the basis for invoking the exemption given instance leaves all judgment its propriety the hands the party obliged comply. Hence, agency not relieved its "obligation justify its actions" even must manner that does not "compromis[e] its original withholdings disclosing too much info1mation.'' Judicial Watch, Inc. FDA, 449 .3d 146 (D.C. Cir. 2006). Unchecked self-regulation public servants contrary the purpose ofFOIA. See Ely FBI, 781F.2d 1487, 1.494 lth Cir. Fla. 
1986)("giv[ing] the government absolute, unchecked veto over what w[ill] w[ill] 
not divulge" "clear violation the provisions [FOIAJ".) Government 
accountability being its chief aim, FOIA places the burden justifying exemptions 
squarely with the government. rejecting abusive overuse this discretionary exemption, one court noted that 
"[o]n its face, Exemption could encompass virtually everything agency reduces writing."Julianv. US. Dep't ofJustice,806F.2d 1411, 1418(9111 Cir. 1986). TheJulian court went recite the Supreme Court's interpretation )(5) exempting "only those documents[] normally privileged the civil discovery context." NLRB Sears, Roebuck Co., 421 U.S. 132, 149 (1975). Thus, agency must minimum identify the corollary privilege "which enjoys under the relevant statutory and case law the pretrial discovery context" order attempt invoke this exemption. Julian,
806 F.2d 1418 (quoting Renegotiation Board Grumman Aircraft Engineering Corp., 
421 U.S. 168, 184 (1975))(internal quotation marks omitted). 
This jurisdiction does not differ the point: shield release documents excerpt redacting Ms. Stowe's government-issued contact information while teleworking here attached Exhibit 
July 2013 
under (b)(5), document must satisfy two conditions: its source must Government agency, and must fall within the ambit privilege against discovery under judicial standard that would govern litigation against the agency that holds it." Gold Anti-Trust Action Comm., Inc. Bd. Governors the Fed. Reserve Sys., 762 
Supp 123, 134 (D.D.C. 201 l)(quoting Dep ofthe Interior Klamath Water Users Protective Ass 'n, 532 U.S. (2001) and citing NLRB Sears, 'f?.oebuck Co., 421 
U.S. 132, 148 (1975) and EPA Mink, 410 U.S. (1973)). exemption under (b)(6) even more rigorous, requiring the elements discussed the telework section amply outlined above. 
Despite these hurdles, CFPB satisfied itself that had discharged its obligation under FOIA with the mere notation that pages are withheld full pursuant Title 
U.S.C.  552 (b)(5) and/or (b)(6)." not for this requester read the agency's mind and correctly apply the intended privilege resort multiple choice. "And/or" not being adequate articulate claim exemption with the particularity and specificity required FOIA, the agency must refine this claim release all pertinent pages withheld once. Having reviewed amply the principles (b)(5) :and (b)(6) the section above, that discussion here incorporated reference and will not recited second time. Suffice say that the principles outlined above were not met and the agency must release all four pages once. 

Whatever responsive documents are released, must produced manner that legible the requester. See Nat Day Laborer Org. Network US. Immigration Customs Enforcement Agency, 811 Supp. 713, 748 (S.D.N.Y. 2011) (observing that marking that obscures text renders text illegible amounting unjustified redaction). 
Here, several pages were faint poorly duplicated following several apparent degradations photocopy quality with demonstrable concern whatever how this might negatively impact full and frank disclosure the American public the business their govemmenf.13 This degree disregard for meaningfully informing the very demos regarding CFPB's training plan shows that the agency less concerned with
transparency leadership arid more consumed with amassing credentials while depleting the U.S. Treasury. CFPB must obliged produce copies ofreords clear and full those they themselves rely expending vast sums payment from the U.S. Treasury while acting league with "noted Institutions Higher Leaming" the illegible page from the production attached here Exhibit serving but one example. 
July 2013 
expense ofunwitting Americans. CFPB will, turn, release said documents Judicial Watch post haste. 
III. Conclusion 
Because CFPB's substantial denial unsupported any. applicable justification and fails meet any FOIA's statutory minimums, Judicial Watch anticipates receipt all responsive documents within days further cost itself the corrected manner described above and accordance with U.S.C.  552 (a)(6)(A)(i) and (a)( 4)(A)(viii).14 
Respectfully submitted, 
Senior Investigator U.S.C.  552 (a)(6)(A)(i) provides for determination FOIA request within days and U.S.C.  552 (a)( 4)(A)(viii) provides for the waiver all fees the requested documents are not timely produced. Judicial Watch's June request cannot appended because was sent via email message. excerpt from the responsive pages released references your request attend the Leadership Corporate Council training program government expense. here attached Exhibit Reference Mr. Slagter's approval made email chain excerpt here attached Exhibit